THE SABAH ISSUE IN INTERNATIONAL LAWBy
Senator Miriam Defensor Santiago

(Keynote speech at the 46th annual convention of the Association of Nursing Service Administrators of the Philippines, Inc. [ANSAP], on 15 March 2013

History Long ago, when the world was new, the Philippines and the island of Borneo formed one land mass. Western archeologists are convinced that land bridges used to connect these two areas. Thus, for centuries, the contacts of North Borneo, now known as Sabah, were confined to the Philippines. The Sulu pirates called Sabah the "land below the wind," because it is located below the typhoon belt.

Eventually, Borneo lost its land bridge and became a separate island, which fell under separate kingdoms known as sultanates. When the Spanish navy reached Philippine shores, the exigencies of colonialism forced the invaders to enter into treaties with the various sultans.

In 1640, it appears that the Spaniards entered into a treaty with the sultans of Sulu and Maguindanao. Under the treaty, the Spaniards allegedly recognized the independence of the two sultanates, and thus the Sulu sultan became the sovereign ruler of Sabah.

In addition, it appears that a 10-year civil war broke out in Brunei between two sultans, one of whom - Sultan Muaddin - requested for military aid from the Sulu sultan. In 1675, the Brunei civil war ended, and the victor Sultan Muaddin ceded Sabah to the Sulu sultan.

In 1759, a Scottish voyager - Alexander Dalrymple - was able to reach the Sulu Sea. In 1877, a private syndicate or company obtained land grants from the Brunei and Sulu sultans. In 1878, the Sulu sultan entered into a deed of pajak with an Austrian named Gustavus Baron de Overbeck, and an Englishman named Alfred Dent, as representatives of a British company. The deed - meaning a written instrument conveying some interest in property - was written in Arabic script. In 1946, Prof. Harold Conklin translated the term pajak as "lease." The 1878 Deed provided for an annual rental. This treaty of pajak was signed by the Sulu sultan, and witnessed by the Borneo British consul-general. This treaty constitutes the main basis of the territorial dispute between the Philippines and Malaysia over Sabah.

The Philippine claims that the term pajak means a lease, while Malaysia claims that pajak means cession. "Lease" means a contract by which a rightful possessor of real property conveys the right to use and occupy the property for consideration, usually rent. "Cession" means the relinquishment or transfer of land from one state to another.

In 1881, the syndicate represented by Overbeck and Dent was chartered as the British North Borneo Co. (BNBC). Subsequently in 1898, under the Treaty of Paris, Spain sold the Philippines to the US. The treaty boundaries allegedly did not include Sabah.

During World War 2, the Japanese occupied Brunei. After the war, in 1946, the British Crown granted to Brunei the status of crown colony. In 1963, Sabah joined Malaysia.

What is at Stake

At stake in the territorial dispute over Sabah between the Philippines and Malaysia are two main prizes: natural resources, and national security.

Sabah has been found to contain rich oil and gas reserves, according to a group based in Singapore called the FACTS Global Energy. It is said that significant pipeline projects to be led by Malaysian companies in Sabah will produce the first gas production by May 2015, and the first power production by November 2015.

In addition, Sabah poses a security risk for both countries. Sabah seems to be the lair of the Al-Qaeda-linked regional terror group Jemaah Islamiyah. Hence, Sabah could be used by terrorists as the springboard of a pan-Islamic state. The Philippine Claim

The Philippine claim is based on the argument that the 1878 Deed concerning the two Europeans and signed by the Sulu sultan was a treaty of lease.

In 1950, Congress adopted a "Concurrent resolution expressing the sense of the Philippines that North Borneo belongs to the heirs of the sultan of Sulu and the ultimate sovereignty of the Republic of the Philippines and authorizing the President to conduct negotiations for the restoration of such ownership and sovereign jurisdiction over said territory."

In 1961, President Diosdado Macapagal filed the Philippine claim to Sabah. The next year, in the U.N. General Assembly, the Philippine vice-president appealed for help in promoting a peaceful resolution to the Sabah issue.

In 1962, the heirs of the Sulu sultan issued a declaration entitled "Recognition and authority in favor of the Republic of the Philippines," which ceded and transferred sovereignty over Sabah to the Philippines. Following that declaration, the Republic of the Philippines accepted the cession of sovereignty made by the Sulu sultan. In that same year, Congress reiterated its 1950 prior resolution.

Over the years, the Sulu Sultan's heirs eventually met President Corazon Aquino, who advised them to organize themselves. In 1966, she wrote the Malaysian prime minister asking him to increase the lease payment. However, Malaysia contends that in 1989, the Sulu sultan's heirs revoked their authorization issued to the Philippine government as their representative. In 2001, another heir sent another demand letter for an increase in lease payments.

In 2008, President Gloria Arroyo issued "Guidelines on Matters Pertaining to Sabah," which required any official activity related to Sabah to first obtain clearance from the Department of Foreign Affairs. In 2009, President Arroyo signed the new law on the archipelagic baselines of the Philippines, which I sponsored. This law was upheld in 2011 by the Supreme Court, which categorically stated that the Philippines retains its claim to Sabah.

It should be emphasized that the Philippine claim has been supported by no less than the British minister of foreign affairs at that time, Earl Granville. He was negotiating the 1885 Protocol and at one point he was replying to the protest of Spain and the Netherlands over the grant of the royal charter to BNBC which included North Borneo. Granville said that the BNBC charter also "recognizes the grants of territory and powers of government made and delegated by the Sultans in whom the sovereignty remains vested."

In the further course of negotiations among certain colonial powers, Granville again stated: "The sovereignty in our view is vested in the Sultans and was merely delegated by them to the company by their concessions."

The claim of Malaysia today is ultimately traced to the claim of the BNBC. However, BNBC was created by British royal grant which does not contain any provision or text granting BNBC authority to acquire or hold territory for and on behalf of the British Crown.

This is why the British foreign minister told the Dutch minister: "The grant of the charter did not in any way imply the assumption of sovereign rights in North Borneo." In the same vein, Granville told the Spanish minister that the British "had no claim to sovereignty either on behalf of her Majesty's Government or of the Company."

The Malaysian Claim

The Malaysian claim is based on the argument that the original document was a treaty of cession. Malaysia traces its claim to the 1878 Deed signed by the Sulu sultans in favor of the adventurers Overbeck and Dent, members of a syndicate which eventually organized into the BNBC. It is claimed that the two adventurers entered into the 1878 Deed as representatives of the BNBC, and thus attained sovereignty over Sabah. Under a fatal misconception - accidental or not - the BNBC turned over sovereignty to the British crown, which in turn devolved to Malaysia.

As in astrophysics, in international law, if you begin with nothing, you end with nothing. The two Europeans never acquired sovereignty over Sabah, and had no power to transfer that sovereignty to the BNBC, to the British crown, or to Malaysia.

In June 1946, the British Crown and the BNBC entered into an Agreement which appears to cede and transfer all the rights, powers, and interests of the BNBC on North Borneo to the British Crown. But allow me to emphasize that such rights, powers, and interests of the private company did not include the power of sovereignty. Hence, it appears that nothing in international law supports the Malaysian contention that the British Crown ceded territorial sovereignty over North Borneo.

Notwithstanding the clear declaration of its own foreign minister that Britain did not acquire sovereignty over Sabah, in 1946 the British government annexed North Borneo to Great Britain, transforming North Borneo into a Crown colony. But again I humbly emphasize that Malaysia is merely a successor-in-interest to Britain. British annexation of North Borneo has no basis in international law.

In February 1964, the Malaysian prime minister entered into an understanding with the Philippine President to discuss "as soon as possible the best way of settling the dispute, not precluding reference to the International Court of Justice." In August of that year, the two governments, in an exchange of aides memoire, authorized a meeting of their representatives in Bangkok to clarify the Philippine claim and discuss the means of settling the dispute.

In 1966, Malaysia sent a diplomatic note repeating its assurances on the concern of the two governments over the Sabah dispute. In February 1966, the Philippines proposed "that both Governments agree as soon as possible on a mode of settlement that is mutually acceptable to both parties."

As a student of international law, I humbly submit that the historical records indicate that sovereignty over Sabah was vested in the Sulu sultan. In turn, the sultan's heirs ceded sovereignty over Sabah to the Philippines. Therefore, it is the Philippines which now possess sovereignty over Sabah.

By contrast with the Philippine claim, Malaysia's claim is based only on two British figures, Overbeck and Dent, who entered into the so-called 1878 Deed. Since the Malaysian claim ultimately depends upon this Deed, then the claim is questionable on two grounds. The first ground is that since the deed is written in Arabic, it is a question whether the intent was to engage in a deed of lease, or in a deed of cession. The second is that under international law, British nationals could not assume state sovereignty; they had no legal status to accept a deed of cession of territory.

If two British nationals had no claim of sovereignty, then what they turned over to the British North Borneo Company did not constitute any claim of sovereignty. When the company turned over its claim to the British government, the British did not acquire anything that its predecessors did not possess. That is the logic of the Philippine claim.

Principles of International Law:

Principle of Lease of Territory

As international law has evolved today, title to territory refers to the acts or facts that constitute the legal foundation for the establishment of right over territory. A title of sovereignty can be established or determined by a treaty, which could be a peace treaty, a treaty of delimitation, or as claimed in the Sabah case, a deed of cession.

The title of sovereignty can also arise from a unilateral act, in the form of an explicit renunciation of territorial sovereignty. The Philippines has never made any such renunciation. At no point can the Philippines be considered to have acquiesced to the claim of Malaysia. For under the ruling by the International Court of Justice in the case of Sovereignty over Pedra Branca/Pulau Batu Puteh case: "Acquisition should not be presumed lightly. In each case, the clear consent to opposing claims needs to be established."

Under international law, there is no precise time limit for producing a right to acquire sovereignty. There is no fixed deadline for this purpose. There is no general international law of leasehold. Each lease under international law is sui generis, and its terms depend upon the particular treaty or deed governing it.

Under international law, a lease of territory is an agreement by which a subject, ordinarily a state, grants another subject of international law, also ordinarily a state, the right to use and exercise control over part of the former's territory. Once territory is leased, sovereignty over it remains with the lessor, and is divorced from jurisdiction, which is granted to the lessee. Lease of territory is usually granted, in return for an annual fee.

A lease is a treaty-based regime. Leases are regulated by the agreement of the parties, and governed by the law of treaties. The basis of international law, which is called state practice, indicates that ultimate sovereignty remains with the lessor state. The customary rule is that state succession does not affect territorial regimes. In practice, successions to lease agreements by lessor states have been expressly regulated by treaties with the lessee.

Wrongful acts committed with respect to a leased territory follow the general rules of attribution. Since Malaysia apparently has committed wrongful acts which have resulted in the deaths of Filipinos in Sabah, Malaysia has assumed state responsibility. Under international law today, the focus is on the human rights obligations of Malaysia toward Filipino individuals and population associated with Sabah.

Principle of Effectivitiès

In the dispute between the Philippines and Malaysia over Sabah, neither side appears to have considered the principle of effectivitiès. This is a French term which refers to acts undertaken in the exercise of state authority, to which a state manifests its intention to act as a sovereign over a territory.

Not every person can display state sovereignty. Only persons whose acts are attributable to a state can perform an act undertaken in the exercise of sovereignty on its behalf. The acts of private entities are in principle not attributable to a state. Thus, they cannot create a title of sovereignty for a state. In the case of the Europeans Overbeck and Dent, the issue is whether those two persons were allowed to exercise elements of governmental authority. Under international law, the presence of a population on a territory is not in itself determinative for deciding which state is the holder of the territorial title of sovereignty. But in brief, in a territorial dispute, the legal value of effectivitiès is to be assessed according to the existence or not of legal title. Effectivitiès undertaken by the Malaysian government do not create a territorial title, because Malaysia has no title of sovereignty over Sabah. Because the title of sovereignty over Sabah is held by the Philippines, our title has primacy over contradictory effectivitiès of Malaysia. The effectivitiès of Malaysia are unlawful and cannot in themselves create a title of sovereignty.

When we analyze a territorial dispute, we have to painstakingly consider state conduct. Philippine state conduct serves to maintain our right of sovereignty over Sabah. Even if the Philippines has lost control of its territory, the Philippines continues to claim Sabah by issuing protests and by enacting legislation, or by taking relevant conducts regarding Sabah, by which Philippine manifests its intent to remain the sovereign.

Principle of Diplomatic Protection

Contemporary international law prohibits the use of force. However, some authors claim that as part of the lex lata, there is an unwritten exception which allows states to protect or rescue their nationals by means of armed forces in the territory of another state. With respect to the Sabah event, I do not subscribe to this exception, because no armed attack has been made on Philippine territory. Without an armed attack, there can be no lawful self-defense.

However, I humbly take the position that it is now a rule of customary international law that a limited forcible action, with the legitimate aim of rescuing a state's own nationals, provides unwritten justification to use armed force in Sabah without the consent of Malaysia. Since 1960, these rescue operations have been a feature of modern state practice. According to authorities: "The opinio juris of the states carrying out the rescue operations would seem to carry enough weight, as to give evidence of an unwritten rule in customary international law."

Should the Philippines engage in a rescue operation for Filipino nationals in Sabah, the Philippines should conform to the following preconditions:

1. The life of Filipino nationals should be genuinely in danger. 2. Malaysia is unwilling or unable to ensure the safety of the persons concerned (ultima ratio). 3. The Philippines does not pursue any other purpose at the occasion of the operation. 4. The scale and effects of the military force used are adequately measured to the purpose and conditions of the operation. Thus, the impact on the other state's territory is kept to the absolutely necessary minimum.

Personal jurisdiction is the basis for the unwritten exception to the international prohibition on the use of force. This exception allows the Philippines to protect Filipino nationals by forcible means in the territory of another state. According to opinio juris, this exception has been developed in state practice for many years, and is in principle recognized today as a permissive customary rule of international law.

The home state has the right to exercise diplomatic protection for its nationals. In the famous Mavrommatis case, the International Court of Justice described diplomatic protection as the right of the state "to ensure, in the person of its subjects, respect for the rules of international law."

More recently, in 2006, the International Law Commission defined diplomatic protection as follows: "Diplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlements of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility." The ICJ considered this definition to be declaratory of existing customary international law.

Pacific Settlement of the Dispute:

Inquiry and Fact Finding

The two disputants over Sabah both base their claim on the 1878 Deed signed by the Sulu sultan in favor of two representatives of a British company. Therefore, the end game should be to promulgate a treaty-based regime in Sabah. That is the long-term goal; but the short-term goal should be to extend immediate diplomatic protection to Filipinos in Sabah, by means of a fact-finding mission.

Under the United Nations Charter, international law requires the pacific settlement of disputes, as follows:

Art. 33. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. It appears that last February 14, some 200 followers of the Sulu sultan, calling themselves the Royal Sulu Army, without the consent of the Philippine government, marched to Sabah, presumably to reclaim it. On March 1, a shootout between the Filipinos and the Malaysian security forces ensued. This was rapidly followed by firefights, battles in cyberspace, and even attacks from jetfighters. On March 7, the sultan's camp declared a unilateral ceasefire, only to be rejected by Malaysia.

Under the 1907 Hague Convention for the Pacific Settlement of Disputes, the method of inquiry and fact finding can be used "to facilitate a solution of . . . disputes by elucidating the facts by means of an impartial and conscientious investigation." This means that the Philippines and Malaysia should agree on a third party to carry out an inquiry, which should precede any pacific dispute settlement, specifically negotiation, mediation, good offices, and conciliation.

The 1907 Hague Convention provides for International Commission of Inquiry. Such fact-finding commissions have been used by the United Nations and other international organizations to investigate, for example:

The involvement of mercenaries in an invasion of the Seychelles in 1981;

The use of chemical weapons in the Gulf War between Iran and Iraq in 1987;

The destruction of Korean Airlines Boeing 447 in 1988.

The UN General Assembly approved the 1991 "Resolution and declaration on fact-finding by the U.N." The Declaration defines fact finding as: "Any activity designed to obtain detailed knowledge of the relevant facts of any dispute or situation which the competent UN organs need in order to exercise effectively their functions in relation to the maintenance of international peace and security."

My humble recommendation is that the disputants should settle the dispute in the first instance by the method of inquiry and fact-finding. This method does not resolve the investigation or application of rules of law. What actually happened during the recent Sabah event? Does the resort to armed force confer state responsibility on Malaysia for internationally wrongful acts?

Principles of Necessity and of Proportionality

Under modern international law, the forceful actions of states are limited by the principle of necessity, and the principle of proportionality. Necessity is a component of legitimate self-defense, and requires that any forceful action must be by way of last resort. Proportionality is the principle that the use of force should be in proportion to the threat or grievance provoking the use of force. These are the human-rights issues that need to be immediately and equitably addressed.

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References:

Max Planck Encyclopedia of Public International Law (Oxford, 2012)

Necessity, Proportionality, and the Use of Force by States by Judith Gardam (Cambridge, 2004)

The Settlement of Disputes in International Law by John Collier and Vaugham Lowe (Oxford, 1999)